Martino v. Wal-Mart Stores, Inc.

Decision Date07 July 2005
Docket NumberNo. SC03-334.,SC03-334.
Citation908 So.2d 342
PartiesRonna MARTINO, et al., Petitioners, v. WAL-MART STORES, INC., Respondent.
CourtFlorida Supreme Court

Philip M. Burlington of Caruso, Burlington, Bohn and Compiani, P.A., and Steven

W. Halvorson of Schuler and Halvorson, P.A., West Palm Beach, FL, for Petitioner.

Rosemary B. Wilder of Marlow, Connell, Valerius, Abrams, Adler and Newman, Coral Gables, FL, for Respondent.

David J. Sales of Searcy, Denney, Scarola, Barnhart and Shipley, West Palm Beach, FL, on behalf of George R. Harper, III d/b/a Rusty Harper Ferneries; Robert Stone d/b/a Robert Stone Ferneries; L. Charles Herring d/b/a H & H Greens; Lars Hagstrom and Lorna Jean Hagstrom d/b/a Lars Hagstrom Partnership; Lars Hagstrom d/b/a Lars Hagstrom Ferneries; T. Larry Jones, Inc.; Morris Hagstrom and Fred Weston d/b/a Hagstrom and Weston Ferneries; Morris Hagstrom and Lars Hagstrom d/b/a Hagstrom and Hagstrom Ferneries; Morris A. Hagstrom d/b/a Morrris A. Hagstrom Ferneries; Sunstate Ferneries, Inc.; Robert I. Stokes and Phillip A. Stokes d/b/a Richfern Growers; Albin Hagstrom and Son, Inc.; Raiford G. Hagstrom d/b/a Raiford G. Hagstrom Ferneries; Hugo R. Massy d/b/a Hugo R. Massy Ferneries; Richard Hagstrom, d/b/a Richard Hagstrom Ferneries; Dean Hagstrom d/b/a Dean Hagstrom Ferneries; Geneva Herring d/b/a Lemuel C. Herring Ferneries; Superior Greens, SA; Paradise Greens, SA; Helechos Ornamentales La Margarita, SA; Inversiones La Mara, SA; Helechos Ornamentales de San Isidro, SA; Corporacion Lums, SA; Agritica, SA; Paraiso Verdes, SA; Haciendo Rio Puries, SA; Fine Foliago Production; Jack B. Shuman d/b/a Shuman Farms; Steve Shuman d/b/a Steve Shuman Greens; Joann Burnsed d/b/a Lane Burnsed Ferneries; Donaldson Ornamentals, Inc.; R. Scott Jones d/b/a High Point Farms; Jones Brothers Ferneries; Helechos de Paraiso, SA; Verdes de Perfecta Calidad, SA; Stacy Jones d/b/a Stacy Jones Ferneries; Norma Jones d/b/a Ronald Jones Ferneries; Frank E. Underhill, Jr. and Jean F. Underhill d/b/a/ Underhill Ferneries; Terry Taylor Enterprises, Inc.; James O. Taylor, Co., Inc.; US Fern, SA; Estate of Patricia Richardson c/o F.A. Ford, Jr.; O. Freeman Greenlund, Jr. d/b/a Freeman Greenlund Ferneries; Robert F. Greenlund d/b/a Robert F. Greenlund Ferneries; David G. Dreggors; John Flowers; Greg James Ferneries, Inc.; James Baldauff and Patricia S. Baldauff d/b/a J & P Properties; James Martin d/b/a James Martin Ferneries; Michael E. Ott d/b/a Manor Way Ferns; James and Scarlett Warner d/b/a James K. Warner Ferneries: Thomas J. Lawrence, Jr., and Estate of Thomas J. Lawrence, Sr., d/b/a T.J. Enterprises; Sunridge, Inc.; Lawrence Farms, Inc.; Harold Dwayne Cohen and Carol Lynn Cohen d/b/a Cohen Foliage; Brian Foxx and Kent Foxx d/b/a Foxx Fernery; Fancy Foliage, Inc.; Robin C. Lennon and Wanda G. Lennon d/b/a Central Florida Foliage; Robert Harper d/b/a Robert Harper Ferneries; Helechos Poliforma, S.A.; Helechos Internacionales, S.A.; Helechos Expreso, S.A.; Helechos Tropicales, S.A.; Marsell, S.A.; Proyectos de Desarrollo de Fraijanes, S.A.; Finco Los LLanos de Ciruelas, S.A.; Finca D.J. SA; Plantas Ornamentales de Guanacaste, S.A.; Florida Helechos, S.A.; Helechos de Costa Rica, S.A.; A y H Helechose, SA; Helechos de Oro, SA; Foliage Incorporado, SA; Helechos de Poas, S.A.; Fernexport, SA; Costa Rican Flower Corporation, SA; American Flower Shippers, Inc.; American Flower Corporation, SA; Flowertree Nursery, Inc.; Botanics Wholesale, Inc., as successor in interest to J.W.M., Inc., d/b/a Botanics Wholesale and Foliage Co-Op, Inc.; Full Bloom Farms, LLC., f/k/a Lovell Farms, Inc., Fred Henry Paradise Orchid; Paul M. Booker, Jr.; Green Acres Fernery and Citrus, Inc.; Lake Harris Greens, Inc. d/b/a Green Acres Fernery and Citrus, Inc., Tree Factory, Inc., Rivers Foliage, Inc., Greenleaf Folliage, Inc., G & B Nursery, Inc., Weeks, d/b/a Weeks Farm, Jamaican Floral Experts LTD., Kim's Nursery, Inc., Continental Wholesale Florist, Inc., KHD, LTD.,; William Keebler, Coconut Orchids, Inc.; and Sagaert Orchids, Inc., as Amici Curiae.

Roy D. Wasson, Miami, FL, on behalf of Academy of Florida Trial Lawyers as Amicus Curiae.

Tracy Raffles Gunn and Ceci Berman of Fowler, White, Boggs and Banker, P.A., and James E. Tribble, Tallahassee, FL, on behalf of Florida Defense Lawyers' Association as Amicus Curiae.


We have for review the decision in Martino v. Wal-Mart Stores, Inc., 835 So.2d 1251 (Fla. 4th DCA 2003), which certified conflict with the decision in Bondu v. Gurvich, 473 So.2d 1307 (Fla. 3d DCA 1984). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.


In March 1997, petitioner Ronna Martino (Martino) went to a Wal-Mart store in Royal Palm Beach. In addition to other items, Martino placed two forty-pound bags of salt in her shopping cart. When checking out, Martino placed all of her items except the bags of salt on the counter for the cashier. According to Martino's testimony, the cashier then asked Martino to lift up the bags of salt so that the cashier could scan the price code. Martino attempted to comply with the cashier's request, placing one bag of salt on the top of the shopping cart where a child would sit. As she placed the salt on top of the shopping cart, the cart collapsed, and Martino injured her arm. Martino then completed the sale and went home.

Martino testified that once she returned home, she called the Wal-Mart store and asked to speak to the manager. Her call was answered by the assistant manager, who advised her to go to the hospital to have her arm checked and then return to Wal-Mart to fill out an incident report. Martino testified that during the conversation with Wal-Mart's assistant manager, Martino informed him where he could find the shopping cart in the parking lot.

After her visit to the hospital, Martino returned to Wal-Mart and filled out an incident report. Martino testified that while she was at the store, she showed the assistant manager where the shopping cart was in the parking lot and requested that he obtain the videotape of the incident from the surveillance camera inside the store.

Thereafter, on August 26, 1999, Martino brought an action against Wal-Mart, alleging that Wal-Mart was negligent in its inspection and maintenance of the store's shopping carts (the "negligent maintenance" theory) and in failing to properly train store employees regarding appropriate procedures for scanning and customer handling of heavy items (the "negligent mode of operation" theory). Martino's husband also asserted a claim for loss of consortium.

During discovery, Martino requested the shopping cart and a copy of the video surveillance tape. When Wal-Mart could not produce either item, Martino filed a second amended complaint, alleging a separate claim for spoliation of evidence. Wal-Mart thereafter filed a motion to dismiss Martino's claim for spoliation of evidence, asserting that Martino's complaint failed to state a cause of action because Martino failed to allege ultimate facts indicating that Wal-Mart had a legal or contractual duty to preserve the evidence. The trial court granted Wal-Mart's motion to dismiss Martino's spoliation claim on the basis that Wal-Mart had no contractual or statutory duty to preserve the evidence.

The case then proceeded to trial on Martino's negligence claims.1 Prior to the presentation of evidence, Martino argued that she was entitled to a jury instruction on the inference of negligence because of Wal-Mart's failure to preserve the evidence. The trial court rejected Martino's argument and ruled that Martino was not entitled to an inference of negligence based on the spoliation of evidence. The trial court granted Wal-Mart's motion for directed verdict.

Martino appealed the trial court's decision to the Fourth District Court of Appeal, arguing that (1) the trial court erred in granting Wal-Mart's motion to dismiss Martino's spoliation-of-evidence claim; (2) the trial court erred in granting a directed verdict in Martino's negligent maintenance claim because there was an adverse inference that the shopping cart and videotape would have been unfavorable to Wal-Mart that should have been drawn from Wal-Mart's failure to produce the shopping cart and videotape; and (3) the trial court erred in granting a directed verdict on the negligent mode of operation claim.

With respect to the first claim, the Fourth District framed the issue to be:

Here, the Martinos allege that Wal-Mart's failure to preserve evidence has impaired their ability to prevail in the very negligence claim they have brought against Wal-Mart. These facts raise an issue that this district has never squarely addressed — whether an independent cause of action for spoliation of evidence is proper when the defendant in the spoliation claim is also the defendant in the underlying claim allegedly impaired by the loss or destruction of the evidence.

Martino, 835 So.2d at 1254. The Fourth District concluded that when the defendant who allegedly caused the spoliation of evidence is also the defendant who allegedly committed the underlying tort causing injury or damages, the plaintiff cannot maintain a cause of action against that defendant for damages on the basis of spoliation of evidence.

The Fourth District certified conflict with Bondu, in which the Third District Court of Appeal held that a first-party2 spoliation of evidence cause of action was cognizable under Florida law. 473 So.2d at 1313. The relief sought by Bondu was the right to maintain a spoliation action against a hospital for the hospital's negligent loss of medical records because that loss allegedly kept Bondu from being able to maintain a medical malpractice action against the hospital and others. The district court recognized that this tort previously had not been identified but concluded that the hospital had both an administrative and a statutory duty to maintain and furnish Bondu's medical records, and held:


To continue reading

Request your trial
42 cases
  • Rizzuto v. Davidson Ladders, Inc.
    • United States
    • Connecticut Supreme Court
    • 3 Octubre 2006
    ...74 Cal.Rptr.2d 248 (1998); Lucas v. Christiana Skating Center, Ltd., 722 A.2d 1247, 1249-50 (Del.Super.1998); Martino v. Wal-Mart Stores, Inc., 908 So.2d 342, 347 (Fla.2005); Gardner v. Blackston, 185 Ga. App. 754, 755, 365 S.E.2d 545 (1988); Gribben v. Wal-Mart Stores, Inc., 824 N.E.2d 349......
  • Superior Boiler Works Inc. v. Kimball
    • United States
    • Kansas Supreme Court
    • 12 Agosto 2011
    ...had been drawn by the dissenting judge in Bondu v. Gurvich, 473 So.2d 1307 (Fla.Dist.App.1984), disapproved by Martino v. Wal–Mart Stores, Inc., 908 So.2d 342 (Fla.2005), in which the Florida Court of Appeals allowed a spoliation claim. Specifically, the Koplin court quoted the dissenting j......
  • In re Electric Machinery Enterprises, Inc.
    • United States
    • U.S. Bankruptcy Court — Middle District of Florida
    • 28 Agosto 2009
    ...Gayer v. Fine Line Constr. & Electric, Inc., 970 So.2d 424, 426 (Fla. 4th DCA 2007). However, after the Florida Supreme Court's ruling in Martino, there is no longer a first-party cause of action for spoliation against the same defendant as in the underlying litigation. Martino v. Wal-Mart ......
  • Rosario v. Miami-Dade County
    • United States
    • U.S. District Court — Southern District of Florida
    • 8 Mayo 2007
    ...Plaintiffs concede that there is no independent action for first-party spoliation of evidence under Florida law. Martino v. Wal-Mart Stores, Inc., 908 So.2d 342, 345 (Fla.2005). Plaintiffs accordingly withdraw their claims for spoliation of evidence alleged in Counts V & VI. (Resp. to Count......
  • Request a trial to view additional results
2 firm's commentaries
  • Does a party to litigation have a common law duty to preserve evidence in Florida?
    • United States
    • Mondaq United States
    • 29 Agosto 2023 "discovery sanctions and a rebuttable presumption of negligence for the underlying tort." Martino, et. al. v. Wal-Mart Stores, Inc, 908 So. 2d 342 (Fla. Although no common law duty to preserve evidence exists, a party who has alleged that its adversary's duty to preserve evidence arose u......
  • Product Liability Update For Retailers: Inherit The Whirlwind
    • United States
    • Mondaq United States
    • 30 Marzo 2012
    ...spoliation, courts generally strike pleadings or enter default judgments. Id. at 780 (citing Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342, 346-7 (Fla. 2005)). In Florida, an independent cause of action for spoliation of evidence, as opposed to discovery sanctions, presumptions, or infer......
25 books & journal articles
  • Florida's homestead realty: is it exempt from imposition of an equitable lien for nonpayment of alimony and child support?
    • United States
    • Florida Bar Journal Vol. 82 No. 7, July 2008
    • 1 Julio 2008
    ...Caggiano, 605 So. 2d 56 (Fla. 1992); Robbins v. Robbins, 360 So. 2d 10 (Fla. 2d D.C.A. 1978). (38) See Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342 (Fla. 2005); Department of Revenue v. Jackson, 846 So. 2d 486 (Fla. 2003); Andrews v. Palmas De Majorca Condominium, 898 So. 2d 1066 (Fla. ......
  • Negligence cases
    • United States
    • James Publishing Practical Law Books Florida Causes of Action
    • 1 Abril 2022
    ...Elements of Cause of Action — Florida Supreme Court [No citation for this edition.] See Also 1. Martino v. Wal-Mart Stores, Inc. , 908 So.2d 342, 347 (Fla. 2005) (not recognizing a cause of action for spoliation of evidence where the defendant and the spoiler are one and the same, but recog......
  • Misconduct
    • United States
    • James Publishing Practical Law Books Trial Objections
    • 5 Mayo 2022
    ...inability to proceed without the evidence in question. The judgment in plaintiff’s favor is reversed. Martino v. Wal-Mart Stores, Inc. , 908 So. 2d 342 (Fla. 2005). The remedy against a first-party defendant for spoliation of evidence is not an independent cause of action for spoliation of ......
  • Electronic, Digital and Other Media
    • United States
    • James Publishing Practical Law Books Archive Guerrilla Discovery - 2014 Contents
    • 5 Agosto 2014
    ...deleting or destroying files and preserve all relevant documents related to the litigation. See also Martino v. Wal-Mart Stores, Inc. , 908 So.2d 342 (Fla., 2005); Zubulake v. USB Warburg LLC, 382 Fed.Supp.2d 536 (S.D.N.Y., 2005). 3-21 electronic, DiGital anD other meDia §3.13 and sanctione......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT